Miller v. Sinclair Refining Company, 17661.

• Decision Date: 21 July 1959
• Docket Number: No. 17661.,17661.
• Citation: 268 F.2d 114
• Parties: Rollins A. MILLER, Appellant, v. SINCLAIR REFINING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

268 F.2d 114 (1959)

Rollins A. MILLER, Appellant, v. SINCLAIR REFINING COMPANY, Appellee.

No. 17661.

United States Court of Appeals Fifth Circuit.

June 25, 1959.

Rehearing Denied July 21, 1959.

Allen Clements, Jr., Claude Pepper, Neal P. Rutledge, Earl Faircloth, Miami, Fla., for appellant.

Dwight Sullivan, Miami, Fla., Scott, McCarthy, Preston, Steel & Gilleland, Atlanta, Ga., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

Appellant, a resident of Tennessee, instituted this action for damages against appellee, a corporation incorporated under the laws of the state of Maine, for personal injuries suffered as a result of an accident at an automobile service station in Monroe County, Florida. The injuries were allegedly incurred when appellant, who was standing beside his automobile while it was being filled with gasoline from a service pump, was severely burned in a fire which was caused by the collision of another automobile and the gasoline pumps. The service station was operated by one Rogers under a dealer's permit from appellee. Appellant presents several theories by which it claims appellee may be held responsible for the allegedly negligent construction or maintenance of the station which allegedly caused the accident. The case is before us on an appeal from the district court's directed verdict and judgment for the defendant. It is noted that the trial court directed the verdict after all the evidence was in rather than withholding his ruling until after a jury verdict, a practice followed by many courts.

Appellant alleged that a portion of the driveway into the service station was covered by loose gravel and that when a certain Mrs. Hess turned into the driveway from the highway for the purpose of purchasing gasoline she skidded on this gravel and was unable to avoid hitting the gasoline pumps. Appellant contends that it was negligence on the part of Sinclair to permit this condition to exist. Appellee contends that there was insufficient evidence of such negligence or of a causal connection between such negligence and appellant's injuries. It also argues that even if there was such negligence appellant has wholly failed to prove that appellant was legally responsible for it. Since we agree with the appellee's latter contention we do not pass upon the correctness of the others. However, we do think it appropriate to say that the theory of negligence and causation was tenuous in the extreme.

The first of appellant's theories on which he seeks to make appellee liable for the negligent maintenance or construction of the approaches to the station is that appellee had such possession and control of the premises as to make it responsible for its physical condition.

The filling station was constructed by Rogers and was leased by him to appellee on August 6, 1951. The lease was to commence on December 8, 1951, and was for ten years with certain renewal options. On September 21, 1951, appellee granted Rogers, the owner of the fee, a dealer's permit, which was also to commence on December 8, 1951. This permit was for a minimum period of one year and was automatically renewable unless terminated by notice at least thirty days prior to the anniversary date. The lease from Rogers to appellee stated that Rogers would place appellee in possession of the premises on December 8, 1951, and the dealer's permit recited that appellee was in possession of them. Appellant strongly relies on these provisions as evidence that appellee was in possession of the premises when Rogers began to operate the station, and he cites other provisions of the dealer's permit as evidence that it retained control of the premises thereafter.

Since the lease to appellee and the dealer's permit became effective on the same date, appellee's possession was only momentary or fictitious possession unless other provisions in these agreements or the conduct of the parties made it otherwise. In this regard appellant first points to the following facts: Appellee put up the money to build the station and held a first mortgage on it; it owned the underground storage tanks, the gas pumps and a sign advertising Sinclair products; and Rogers was empowered to honor Sinclair credit cards. It is obvious that none of these facts bears on the question of possession or control of the filling station.

Appellant next argues that appellee manifested its control of the place by its contractual reservation of the right of entry and inspection and of the right to make any necessary repairs to maintain the premises in good condition and to charge Rogers therefor in the event he failed to fulfill his agreement to maintain them, and also by the testimony of appellee's district manager and local branch manager that the latter inspected the station periodically to see if the station was in good, clean condition and made suggestions to Rogers concerning maintenance and operation of the station. However, the terms of the lease to appellee makes it clear that the duty to maintain the premises was Rogers', as owner, not Sinclair's. The lease provided that:

"Lessor agrees, of its own expense, to maintain in good condition and repair and suitable for the business purposes of Lessee all the premises, improvements and personal property hereby leased, including driveways and approaches."

Moreover, the uncontradicted testimony of appellee's managers was that their suggestions to Rogers were nothing more than that and Rogers not only did...